Murray v. Etchepare

McFARLAND, J.

Action to foreclose a mortgage executed February 12, 1895, by defendant Etchepare to plaintiff. Leonis was made a party defendant upon the averment that she claimed some interest in the mortgaged premises “subsequent to and subject to the lien of the plaintiff’s mortgage.” Etchepare suffered default. Leonis answered, averring that she was the owner of the premises on and prior to July 31, 1894, and on that day conveyed the same to defendant Etchepare; that the conveyance to the latter was procured by fraud, false representations, etc., and that these facts were known to plaintiff when she took the mortgage. She also presented a cross-complaint, in which she set up these facts and prayed that plaintiff be restrained from foreclosing the mortgage, etc.; but the court refused to allow the same to be filed. Judgment was then rendered on the pleadings, foreclosing the mortgage for the amount found to be due. Leonis appeals from the judgment. These rulings of the court below were correct, and we see no reason for reversing the judgment. The title asserted by appellant to the mortgaged premises was paramount and hostile to that of both the mortgagor and mortgagee, and it has been definitely established here that such a title cannot be litigated in an action to foreclose a mortgage.

(San Francisco v. Lawton,

18 Cal. 474

1

;

Croghan v. Minor,

53 Cal. 15;

Marlow v. Barlew,

53 Cal. 456;

Ord v. Bartlett,

83 Cal. 428;

Cody v. Bean,

93 Cal. 578;

Sichler v. Look,

93 Cal. 608, 609.)

[320]

The rule is not affected by the cases of

Houghton v. Allen,

75 Cal. 102,